This chapter of the East Hampton Town Code shall be known and
may be cited as the "Community Housing Opportunity Fund Law."
This chapter is adopted for the purpose of promoting affordable
community housing programs and development within the Town of East
Hampton. In accordance with the provisions of § 64-K Subdivision
3 of the New York Town Law also referred to as the Peconic Bay Region
Community Housing Act.
As used in this chapter, terms shall have the definitions set forth in Chapter
160 "Community Housing Opportunity Fund" of the Town Code unless otherwise provided herein.
CONSIDERATION
The price actually paid or required to be paid for the real
property or interest therein, including payment for an option or contract
to purchase real property, whether or not expressed in the deed and
whether paid or required to be paid by money, property or any other
thing of value. It shall include the cancellation or discharge of
an indebtedness or obligation. It shall also include the amount of
any mortgage, purchase money mortgage, lien or other encumbrance,
whether or not the underlying indebtedness is assumed or taken subject
to.
A.
In the case of the creation of a leasehold interest or the granting
of an option with use and occupancy of real property, consideration
shall include, but not be limited to, the present value of the rental
and other payments attributable to the use and occupancy of the real
property or interest therein, the value of any amount paid for an
option to purchase or renew and the present value of rental or other
payments attributable to the exercise of any option to renew.
B.
In the case of the creation of a sub-leasehold interest, consideration
shall include, but not be limited to, the present value of the sublease
rental payments attributable to the use and occupancy of the real
property, the value of any amount paid for an option to renew and
the present value of rental or other payments attributable to the
exercise of any option to renew, less the value of the remaining prime
lease rental payments required to be made.
C.
In the case of a controlling interest in any entity that owns
real property, consideration shall mean the fair market value of the
real property or interest therein, apportioned based on the percentage
of the ownership interest transferred or acquired in the entity.
D.
In the case of an assignment or surrender of a leasehold interest
or the assignment or surrender of an option or contract to purchase
real property, consideration shall not include the value of the remaining
rental payments required to be made pursuant to the terms of such
lease or the amount to be paid for the real property pursuant to the
terms of the option or contract being assigned or surrendered.
E.
In the case of the original conveyance of shares of stock in
a cooperative housing corporation in connection with the grant or
transfer of a proprietary leasehold by the cooperative corporation
or cooperative plan sponsor and the subsequent conveyance by the owner
thereof of such stock in a cooperative housing corporation in connection
with the grant or transfer of a proprietary leasehold for a cooperative
unit other than an individual residential unit, consideration shall
include a proportionate share of the unpaid principal of any mortgage
on the real property of the cooperative housing corporation comprising
the cooperative dwelling or dwellings. Such share shall be determined
by multiplying the total unpaid principal of the mortgage by a fraction,
the numerator of which shall be the number of shares of stock being
conveyed in the cooperative housing corporation in connection with
the grant or transfer of a proprietary leasehold and the denominator
of which shall be the total number of shares of stock in the cooperative
housing corporation.
CONTROLLING INTEREST
A controlling interest is:
A.
In the case of a corporation, either 50% or more of the total
combined voting power of all classes of stock of such corporation
or 50% or more of the capital, profits or beneficial interest in such
voting stock of such corporation.
B.
In the case of a partnership, association, trust or other entity,
50% or more of the capital, profits or beneficial interest in such
partnership, association, trust or other entity.
CONVEYANCE
The transfer or transfers of any interest in real property
by any method including but not limited to sale, exchange, assignment,
surrender, mortgage foreclosure, transfer in lieu of foreclosure,
option, trust indenture, taking by eminent domain, conveyance upon
liquidation or by a receiver, or transfer or acquisition of a controlling
interest in any entity with an interest in real property. Transfer
of an interest in real property shall include the creation of a leasehold
or sublease only where the sum of the term of the lease or sublease
and any options for renewal exceeds 49 years, substantial capital
improvements are or may be made by or for the benefit of the lessee
or sublessee and the lease or sublease is for substantially all of
the premises constituting the real property. Notwithstanding the foregoing,
conveyance of real property shall not include the creation, modification,
extension, spreading, severance, consolidation, assignment, transfer,
release or satisfaction of a mortgage; a mortgage subordination agreement,
a mortgage severance agreement or an instrument given to perfect or
correct a recorded mortgage; or a release of lien of tax pursuant
to this chapter or the Internal Revenue Code.
FUND
The East Hampton Community Housing Opportunity Fund created and established pursuant to § 64-K of the New York Town Law and Article
I of this chapter.
GRANTEE
The person who obtains real property or an interest therein
as a result of a conveyance.
GRANTOR
The person making the conveyance of real property or interest
therein. Where the conveyance consists of a transfer or an acquisition
of a controlling interest in an entity with an interest in real property,
"grantor" shall mean the entity with an interest in real property
or a shareholder or partner transferring stock or partnership interest.
INTEREST IN REAL PROPERTY
Includes title in fee, a leasehold interest, a beneficial
interest, an encumbrance, development rights, air space and air rights
or any other interest with the right to use or occupancy of real property
or the right to receive rents, profits or other income derived from
real property. It shall also include an option or contract to purchase
real property. It shall not include a right of first refusal to purchase
real property.
PERSON
An individual, partnership, society, association, joint-stock
company, corporation, estate, receiver, trustee, assignee, referee
or any other person acting in a fiduciary or representative capacity,
whether appointed by a court or otherwise, any combination of individuals
and any other form of unincorporated enterprise owned or conducted
by two or more persons.
REAL PROPERTY
Every estate or right, legal or equitable, present or future,
vested or contingent, in lands, tenements or hereditaments, including
buildings, structures and other improvements thereon, which are located
in whole or in part within the Town. It shall not include rights to
sepulture.
TOWN
The Town of East Hampton.
The East Hampton Community Housing Fund is established under Chapter
160 of the Town Code (Community Housing Opportunity Fund) as authorized by § 64-K of the New York Town Law, and deposits to the same as well as use of such funds shall be in a manner consistent with such Chapter
160 of the Town Code and the New York State Town Law § 64-K as amended, from time to time.
Community Housing Opportunity Funds shall be utilized as provided in Chapter
160 Community Housing Opportunity Fund and New York State Town Law § 64-K as amended from time to time.
The Town Board shall have power, by resolution and after a public
hearing held on not less than five days' notice, to adopt and implement
regulations pertaining to the collection and administration of funds
for affordable housing programs, provided such regulations are consistent
with the provisions of New York State Tax Law Article 31-D, as the
same may be amended from time to time.
There is hereby imposed in the Town of East Hampton a supplemental tax on each conveyance of real property or interest therein where the consideration exceeds $500, as authorized by Article 31-D of the New York Tax Law, the rate of such tax to be 0.5% of the consideration for the conveyance. Revenues from such tax shall be deposited in the Affordable Housing Fund established pursuant to Article
I of this chapter and may be used solely for the purposes of said fund. Such tax shall apply to any conveyance occurring on or after the adoption of this chapter, but shall not apply to conveyances made on or after such date pursuant to binding written contracts entered into prior to such date, provided that the date of execution of such contract is confirmed by independent evidence such as the recording of the contract, payment of a deposit or other facts and circumstances as determined by the County Comptroller.
A grantor shall be allowed a credit against the tax due on a
conveyance of real property to the extent that tax was paid by such
grantor on a prior creation of a leasehold of all or a portion of
the same real property or on the granting of an option or contract
to purchase all or a portion of the same real property by such grantor.
Such credit shall be computed by multiplying the tax paid on the creation
of the leasehold or on the granting of the option or contract by a
fraction, the numerator of which is the value of the consideration
used to compute such tax paid which is not yet due to such grantor
on the date of the subsequent conveyance (and which such grantor will
not be entitled to receive after such date) and the denominator of
which is the total value of the consideration used to compute such
tax paid.
The County Comptroller is authorized by law to designate the recording officer to act as his agent for the purpose of collecting the tax imposed by this article. The Comptroller shall provide for the manner in which such person may be designated as his agent subject to such terms and conditions as he shall prescribe. The real estate transfer tax shall be paid to such agent as provided in §
162-2-15 hereof.
A recording officer shall not be liable for any inaccuracy in
the amount of tax imposed pursuant to this article that he shall collect
so long as he shall compute and collect such tax on the amount of
consideration or the value of the interest conveyed as such amounts
are provided to him by the person paying the tax.
Whenever the Comptroller shall determine that any moneys received
under the provisions of this article were paid in error, he may cause
such money to be refunded pursuant to such rules and regulations as
he may prescribe, provided that any application for such refund is
filed with the Comptroller within two years from the date the erroneous
payment was made.
The effect date of this legislation and Chapter
160 is contingent upon approval by mandatory referendum.
[Added 3-2-2023 by L.L. No. 5-2023]
A mandatory referendum having been submitted to the voters of the Town of East Hampton on the 8th day of November 2022, to fund affordable housing opportunities in East Hampton Town and amending Chapter
160 of the Town Code, entitled, "Community Housing Opportunity Fund," and adding new Chapter
162, entitled, "Supplemental Real Estate Transfer Tax for Community Housing," establishing a 0.5% tax paid by the purchaser of real property in the Town, with the revenues deposited in the East Hampton Community Housing Opportunity Fund having been approved by the voters, the effective date of the provisions of Chapter
162, as approved by Resolution No. 2022-943, shall be April 1, 2023.